FMLA Termination

MIHR

Situation: we terminate benefits if an employee is inactive for 26 consecutive weeks. If they are inactive for 52 weeks, they are erminated from employment. So, can the 12 week FMLA entitlment count against loss of benefits or termination? In other words, in the case of someone who is out on FMLA for 12 weeks, do we have to wait 38 weeks and 64 weeks respectively before those events can occur?

HRanna

Yes, FMLA leave can run concurrently with your company's leave policy. So the 12 weeks of FMLA can be part of the 26 week period, not in addition to it. But check your company's policy to make sure you don't have anything in place that would prohibit this.

pork1

[font size="1" color="#FF0000"]LAST EDITED ON 06-07-05 AT 07:44AM (CST)[/font][br][br]MIHR: It reads like you do not have a copy of either your company policy/employee handbook/or the Regulations on FMLA. This person would have been terminated on 12th week plus 1 day for failure to report back to work by "date certain". If the employee applied for an extention with a new physician certification attached, we would be able to extend by an additional 16 weeks. However, without the physician stating that he/she can have the patient back in the work force on a "date certain" within the additional 16 weeks the employee's application would be denied based on attendance & medical disqualifications issues.

PORK

HRinFL

The time spent on FMLA cannot count toward your attendance policy. Take those weeks out of the equation and from the date the leave expired, or the ee was given authorization to return to work and failed to do so, you can count that toward your policy. If you count the FMLA time, you are essentially penalizing the ee for taking a protected leave. This is a no-no.

HRanna

If I understand correctly, you were asking if the 12 weeks of FMLA can run concurrently with the medical leave allowed by your company policy.

The was you explain it, your company policy allows medical leave to extend beyond the 12 weeks allowed under FMLA (up to 52 weeks). My company policy does the same - our medical leaves can run for up to one year. That does not mean I have to allow one year after FMLA is used up. Medical leave (under your company policy) and FMLA can run concurrently.

Pork, I'm sure MIHR does have a copy of his policies and the FMLA regulations. He was not asking if he has to allow more than the required 12 weeks, he was asking, because his company does allow for more time, if it can run concurrently with FMLA.

Also, MIHR, I do not believe you were asking about applying your attendance policy. If your medical leave policy allows up to 52 weeks off, then administering your attendance policy is not an issue.

Of course, as pointed out by the others, you want to make sure you have clear medical documentation submitted to you in a timely manner to allow any of this time off.

System

I tend to agree with HRinFL: you cannot count any portion of the FML against the employee for purposes of benefit eligiblity. The employee must be treated as if the absence due to FMLA never ocurred. Your question then "...can the 12 week FMLA entitlement count against loss of benefits or termination...?", I think the answer clearly is "NO". Medical leaves provided by the employer can indeed run concurrently with FMLA for purposes of determining remaining leave eligility, but cannot count against an employee for beneift eligiblity or attendance purposes.

HRanna

If the company promises 26 weeks of continued benefits, why can't the 12 weeks under FMLA be part of that? In doing so, you are not decreasing their benefits in any way, you are simply providing more than FMLA requires. FMLA does not say the 12 weeks has to be in addition to anything provided for by company policy.

marc

A couple of good points have been raised in this thread. The FMLA does say the EE should not be penalized for using it, which would support the idea that the benefits should be on top of FML, but court cases also say the act was intended to make sure that the EE's got at least 12 weeks, it was not intended to make sure the EEs got 12 weeks plus whatever the company was doing.

In my opinion, if you state within your company policy that the benefits run concurrently with FML, that would alleviate the question.

System

HRanna: The 12 weeks of FMLA can count as part of the 26 weeks of leave offered by the company. But the question is can you terminate benefits or employment after the 26 weeks if 12 of those weeks were for FMLA? I don't think the statute allows you to do so as that would be an adverse action initiated solely because of the utilization of FMLA. However, I'm at the point where I'm confusing myself and really don't know what the hell you can do in that situation!! Call an attorney before our heads explode!!!

HRanna

My point stands: how is making the 12 weeks part of the 26 weeks an adverse action? You are not taking anything away. You are adding seomthing - FMLA requires a minimum of 12 weeks, the company gives more than that.

HRinFL

The way I see it, the policy gives 26 weeks before something bad happens, you are no longer eligible for benefits, then in 52 weeks, you are no longer employed. FMLA gives protection for ees that need tme off for a qualifying reason. How can you count that as part of the 26 or 52 weeks when it results in an adverse employment action. You can run concurrently for W/C Leave, etc. You can term after 12 weeks and the ee does not return to work - but you cannot term during the 12 weeks based on attendance alone. I still think that it is not a good idea to use time that is protected and count that toward an adverse action. It is different if the company does not have any other avenues for the ee to use at the end of FMLA and is termed for not returning to work. I think the wording of the policy is the key. You are saying that an ee has 26 weeks before no benefits and 52 weeks before taken off the payroll - does it say unless on an approved leave, or unless the absences are deemed excused, etc. If so, I say play it safe and do not count. I think the DOL would say that the 12 weeks would not apply under the policy and that the time should start after the 12 weeks expired.

LindaS

We run our FMLA concurrent with our STD plan so when an EE goes out on a medical leave, their FMLA time starts with the first day they miss work and their payment starts based on what the plan says. The EEs have up to 26 weeks of STD payment during a calendar year.

Once they have been out for 12 weeks they are removed from our group insurance and given COBRA paperwork. If they choose NOT to elect COBRA they are left without insurance. Once the EE returns to work, working at least 30 hours per week, they are offered insurance again. If more than 63 days have passed since they had coverage, they are subject to our pre-existing condition waiting periods.

This has gone through not only our attorney and our TPA but is in our union contract as well.

The FMLA was enacted to grant an eligible EE up to 12 weeks off work without having to worry about losing their benefits or their job, no more, no less. If an employer decides to go above and beyond what the regulations require, that is their choice but that does NOT mean that the EE has whatever the employer provides PLUS FMLA, again unless the employer agrees to provide it.

In answer to your question, benefits would terminate at the end of the 26 weeks and employment would terminate at the end of the 52 weeks.

Hope this helps.

pork1

MIHR: I believe that you can run the 12 weeks and the 14 additional weeks of medical leave together. We do and it is broken into 12 weeks for FMLA and an additional 14 weeks if applied for and cerified by the physician. Therefore,we are doing the same thing as you, but your company may be giving the additional 26 weeks attached to the first 12 weeks. I just can't tell from what you have written.

We do not approve the additional 14 weeks with out physician's certification that the duration of the illness will be overcome within the additional 14 weeks. This case would then become a medical disqualification and termination would occur on the last day of the 12 week FMLA!

Bottom line, since you are doing better than the law, stick with your policy and procedures state, or change them to fit the organization's needs.

Pork

MIHR

Thanks all. I believe I have confirmation of what I thought and can bring this to an end. We indeed end benefits after 26 weeks consecutuive inactive status (regardless of the reason)and terminate after 52.